(District Oourt, W. D. Tenne88ee.
April 29, 1882 I
CRIMINAL LAW-WITHHOLDL"'fG PENSION-REVISED STATu!rES, § 5485.
The section of the Revised Statutes punishing an agent or attorney, or other person instrumental in prosecuting any claim for pension, who shall wrongfully withhold from a pensioner or claimant the whole or any part of the pension or claim allowed and due such pensioner or daimant, is not confined to with· holding the money actually collected by the agent, but extends likewise to withagainst the will of the pensioner, the check or treasury warrant coming into his hands, and is intended to protect the pensioner againstfrauds until the unconditional payment of the money to him. Held, therefore, where an agent procured a power of attorney authorizing him to receive the letter containing the treasury warrant, received it from the post-office, assumed to have the authority to indorse it in the of the pensioner, and passed it by indorsement to a merchant in payment of a'small account due by the pensioner to the' merchant and in payment of a de.bt due by the agent himself to the merchant,. a.nd took to himself the merchant's. due.bill for the balance, that it was an offenc.eagainst the statute to negleot or refuse to pay the amount due to the Pensioner, and this without regard to·the authority'orthe wanl of authority in the agent to so indorse the check.
Indictment. The indictment in this case, containing two counts, charged thedefendant, as the agent and attorney of one Mary Jane Simmons in the prosecution of her pension claim, with wrongfully withhhoiding from her a certain portion of the pension granted by the United States. The claim was allowed in February, 1881, and on March 4th, following, the pensioner executed the proper vouchers for thesum of $333.86, the amount due her,. which were forwarded to the paying agency at Knoxville. Afterwards, on the same day, the defendant procured Mrs. Simmons to execute to him a power of attorney to receive from the post.office at Dresden all letters addressed to her concerning her pension, and sign "allpapera, acknowledg. ments, receipts, and vouchers" necessary to carry into effect the pow,erof attorney; but this instrument did not authorize defendant to· indorse the, pension check. The defendant then went to a merchant. in Dresden, represented that he Jlaa the power of attorney, and that it authorized him to indorse the check which would soon arrive, and. that Mrs. .8immcllls desired to purchase goods on C1'adit; .the merchant thereupon Bold her some $85 of goods, she agreeing to pay forthe same out of her pension money when it arrived. The pensionerwas an ignorant woman, who could neither read nor write.
'Some two or three weeks afterwards the letter containing the check came to the post-office at Dresden, addressed to the pensioner, and having the pension-office stamp printed on the envelope. The defendant, in company with the merchant, went to the postoffice, deposited the power of attorney with the postmistress, rElceived the letter, opened it, and indorsed the check as follows:
Witness: B. F. RYCKMAN, Attorney, Dl'es-
den, Tennessee;" and delivered it to the merchant, who, in payment of the check, credited the pensioner with the $35 due him from her for the goods sold, and credited the defendant also in the sum of about $100 owing from him to the merchant,and gave the defendant a small amount in money, and his note or due.bill, payable to defend· of ant, for the balance. The pensioner did not know of her check for some weeks afterwards, was not present when it 'was indorsed, and first ascertained the fact by inquiry at the post.office, when she sent to the defendant for her money, but he never paid her any of it nor went to see her about it. She then, on learning .that Mr. Irvine, the merchant, had cashed her cheek, had an interview with him. On being advised that the power of attorney did not authorize the defendant to indorse the check, Mr. Irvine paid the pensioner the full amount of the check in money, except the $35 due him from her, and at once notified the pension agency at Knoxville, and the commissioner of pensions at Washington, of the facts, and made several demands upon the defendant for the note or due-bill given him; but the latter refused to surrender it, and it was not in his possession at the trial. On the back of this check was the following notice, printed in red ink: "NOTICE-The payee's indorsement on this check must correspond with signature to the voucher for which the check was given. If the payee cannot write, his or her mark should be witnessed, and the witness state his or her residence in full." The check was dated March 8,1881. It was conceded by the defendant's counsel in argument that if the indorsement by the defendant of the pensioner's name on the check had been duly authoriZed by the power of attorney, and there were no law making such instruments concerning pensions void, the defendant, under the facts of the case, would be guilty; but it was can· tended for the d,efendant that the power of attorney being yoid in law, and not in terms authorizing the indorsement, the had been ·paid by Irvine on a forged indorsement;. tha.t, his due..bill to the defeudantwas also void. and that the. government waS,no.l..,
withstanding, liable to the pensioner for the money; and that as the defendant had received no money for the cbeck, except about five dollars, less than the fee allowed him by law, and Irvine had paid the proceed:,; of the check to her there had been no withholding, and the court was requested to so instruct the jury. John B. GlOltgh, Asst. U. S. Atty., for the United States. Henry W. McGarry, for defendant. HAMMOND,D. J., (charging jury.) The indictment in this case charges a violation of section 5485 of the Revised Statutes, whiCl1 is as follows:
"Any agent or attorney, or other person instrumental in prosecuting any claim for pension or bounty land, who shall directly or indirecty contract for, or demand, or receive, or retain any greater compensati,on, for his a claim for pension or bounty land than.is instrumentality in in the title pertaining to pensions, or who shall wrongfully withhold from a pensioner or claimant the whole or any part of 'the pension or claim allowed and due such pensioner or claimant. or the limd"warrant issued to any such claimant,shall be deeRled guilty of a high misdemeanor, and upon convic.t!onthereof shall, for every such offence, be fined not exceeding $500, or labor not exceeding two years, or both, at,the discretion of imprisoned the court."
The statute, you will perceive, prescribes the punishment for two offences iIi relation to the prosecution of a claim for pension,-one, the contracting for, demanding etc., of greater compensation for the agent's services than allowed by law; the other, the withholding by the agent of the whole or any part of the pension or claim allowed; and the case under consideration relates only to this latter offence. The plain purpose of all those stringent provisions of the pension laws whic4 the district attorney has read in your hearing is to secure absolutely to the pensioner the bounty of the government. It cannot, on any pretext, be lawfully diverted, directly or indirectly, while in transit to his hands. It is not assets for the payment of debts, and can be in no way pledged or impounded for that purpose, and all deal. ings in that direction are null and void. There is a somewhat anal· ogous policy which protects the salaries of officers of the state and federal governments, and it is generally recognized everywhere. But here congress has, by the most stringent special legislation, sought to protect these pensioners, so munificently endowed, against all possibility of being defrauded by the agents they employ to collect their dues from the government. Nothing less than the unconditional payment of the full amount. less the small fee allowed, will discharge the agent from the penal-
UNITED STATES V. RYCKMAN.
indorsing her name upon it, and received for it any cash or credit or property and Irvine's due-bill or note, and thus appropriated tbe money to his own use, and that he subsequently neglected or failed, on demand, to pay the amount of the check, or any part of it, to the nensioner, it is your duty to find him guilty under this indictment. The fact that Irvine has seen fit to pay the money to her cannot be a defence to the defendant on the facts of this case. Take the case, gentlemen, and consider your verdict. Verdict of guilty, and new trial refused.
.NOTE. Consult the following decisions on this section, (5485, Rev. St.:) U. S.v. Benecke, 98 U. S. 447; U. S. v. Irvine, Id. 450; U. S. v. Sncyw, 23 Int. Rev. Rec. 78; U. S. v. F'airchilds, 1 Abb. 74; U. S. v.Marks, 2 Abb. 531; U. S. v. Chaffee, 4 Ben. 331; U. S. v. Howard, 7 Biss. 56; U. S. v. Bennett, 12 BIatchf. 345; U. S. v.8chindle1·, 18 BIatchf. 227; S. C. 10 FED. REP. 547 ;U. S. v. Connolly, 1 FED. REP. 779; U. S. v. Dowdall. 8 REP. 881; U. S. v. Mason, rd. 412. Compare, also, Sup. Rev. St. pp. 386, 602, and sections 3477, 4745.2414, 2436, 4747, 5435, 5436,4783, 5486, Rav. St.
see u.s. Y. Bevill. 11 j'E]). Ru. 243.
WINSTEAD and another.
(District Court, W. D. North Oarolina. April Term, 1882.)
JUDGMENT-ON FORFEITED RECOGNIZANCE.
A judgment upon a forfeited recognizance of bail is absolute, and is not judgment nisi. .. . .
RECOGNIZANCE-JOINT JUDGMENT-REVIVAL AGAINS'f REPRESENTATIVES.
Where the judgment on a recognizance was joint as against the principal and sureties, and the principal dies, a scirejaciafl. will issue to revive the judgment as against the representatives of deceased, and on its return the questioll of remission of the penalty will be considered.
At the last term of the court W. H. Winstead failed to appear and answer to a criminal prosecution, and judgment was entered against him and his surety oq a. forfaited recognizance of bail. Upon this judgment a sci1'efacias was issued to the parties, to show ca,l1se why execution should not be issued. At this term the surety filed a plea stating that the defendant had died before the service of the scire facias, and the surety now asks to be discharged from his liability as bail. James E. Boyd, Dist. Atty., for the United:States. Keogh tX Ba1'ringer, for defenda.nts.